MITIGATING CIRCUMSTANCES

Definition Those circumstance which reduce the penalty of a crime

Effect Reduces the penalty of the crime but does not erase criminal liability nor
change the nature of the crime
Kinds of Mitigating Circumstance:
Privileged Mitigating
Ordinary Mitigating
Offset by any Cannot be offset by any Can be offset by a generic
aggravating
aggravating circumstance
aggravating circumstance
circumstance
Effect on the Has the effect of imposing the If not offset, has the effect of
penalty
penalty by 1 or 2 degrees than imposing the penalty in the
that provided by law
minimum period
Kinds
Minority,
Incomplete
Self- Those
circumstances
defense, two or more mitigating enumerated in paragraph 1 to
circumstances
without
any 10 of Article 13
aggravating circumstance (has
the effect of lowering the penalty
by one degree)

Article 13.
1. Those mentioned in the preceding chapter, when all the requisites necessary to
justify the act or to exempt from criminal liability in the respective cases are not
attendant

Justifying circumstances
a. Self-defense/defense of relative/defense of stranger unlawful aggression
must be present for Art 13 to be applicable. Other 2 elements not necessary. If 2
requisites are present considered a privileged mitigating circumstance.
Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries
to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense
because although there was unlawful aggression and reasonable means to repel
was taken, there was sufficient provocation on the part of Juan. But since 2
elements are present, it considered as privileged mitigating.
b. State of Necessity (par 4) avoidance of greater evil or injury; if any of the last 2
requisites is absent, theres only an ordinary Mitigating Circumstance.
Example: While driving his car, Juan sees Pedro carelessly crossing the street.
Juan swerves to avoid him, thus hitting a motorbike with 2 passengers, killing
them instantly. Not all requisites to justify act were present because harm done to
avoid injury is greater. Considered as mitigating.
c. Performance of Duty (par 5)
Example: Juan is supposed to arrest Pedro. He thus goes to Pedros hideout.
Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have

acted in the performance of his duty but the crime was not a necessary
consequence thereof. Considered as mitigating.

Exempting circumstance
a. Minority over 9 and under 15 if minor acted with discernment, considered
mitigating
Example: 13 year old stole goods at nighttime. Acted with discernment as shown
by the manner in which the act was committed.
b. Causing injury by mere accident if 2nd requisite (due care) and 1st part of 4th
requisite (without fault thus negligence only) are ABSENT, considered as
mitigating because the penalty is lower than that provided for intentional felony.
Example: Police officer tries to stop a fight between Juan and Pedro by firing his
gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged his
gun but was unmindful of the fact that area was populated.
c. Uncontrollable fear only one requisite present, considered mitigating
Example: Under threat that their farm will be burned, Pedro and Juan took turns
guarding it at night. Pedro fired in the air when a person in the shadows refused
to reveal his identity. Juan was awakened and shot the unidentified person.
Turned out to be a neighbor looking for is pet. Juan may have acted under the
influence of fear but such fear was not entirely uncontrollable. Considered
mitigating.

2. That the offender is under 18 years of age or over 70 years. In the case of a
minor, he shall be proceeded against in accordance with the provisions of Art 192
of PD 903

Applicable to:
a. Offender over 9, under 15 who acted with discernment
b. Offender over 15, under 18
c. Offender over 70 years

Age of accused which should be determined as his age at the date of commission of
crime, not date of trial

Various Ages and their Legal Effects

a. under 9 exemptive circumstance
b. over 9, below 15 exemptive; except if acted with discernment
c. minor delinquent under 18 sentence may be suspended (PD 603)
d. under 18 privileged mitigating circumstance
e. 18 and above full criminal responsibility
f. 70 and above mitigating circumstance; no imposition of death penalty; execution
g. of death sentence if already imposed is suspended and commuted.

3. That the offender had no intention to commit so grave a wrong as that

committed (praeter intentionam)

Can be used only when the facts prove to show that there is a notable and evident
disproportion between means employed to execute the criminal act and its
consequences
Intention: as an internal act, is judged by the proportion of the means employed to
the evil produced by the act, and also by the fact that the blow was or was not aimed
at a vital part of the body.
Judge by considering (1) the weapon used, (2) the injury inflicted and (3) the attitude
of mind when the accuser attacked the other.
Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound treated,
so he died from loss of blood.
Not applicable when offender employed brute force
Example: Rapist choked victim. Brute force of choking contradicts claim that he had
no intention to kill the girl.
Art 13, par 3 addresses itself to the intention of the offender at the particular moment
when he executes or commits the criminal act, not to his intention during the
planning stage.
In crimes against persons if victim does not die, the absence of the intent to kill
reduces the felony to mere physical injuries. It is not considered as mitigating.
Mitigating only when the victim dies.
Example: As part of fun-making, Juan merely intended to burn Pedros clothes.
Pedro received minor burns. Juan is charged with physical injuries. Had Pedro died,
Juan would be entitled to the mitigating circumstance.
Not applicable to felonies by negligence. Why? In felonies through negligence, the
offender acts without intent. The intent in intentional felonies is replaced by
negligence, imprudence, lack of foresight or lack of skill in culpable felonies. There is
no intent on the part of the offender which may be considered as diminished.
Basis of par 3: intent, an element of voluntariness in intentional felony, is diminished

4. That the sufficient provocation or threat on the part of the offended party
immediately preceded the act.

Provocation any unjust or improper conduct or act of the offended party, capable
of exciting, inciting or irritating anyone.
Basis: diminution of intelligence and intent
Requisites:
a. Provocation must be sufficient.
1. Sufficient adequate enough to excite a person to commit the wrong and must
accordingly be proportionate to its gravity.
2. Sufficiency depends on:
the act constituting the provocation
the social standing of the person provoked
time and place provocation took place

3. Example: Juan likes to hit and curse his servant. His servant thus killed him.
Theres mitigating circumstance because of sufficient provocation.
4. When it was the defendant who sought the deceased, the challenge to fight
by the deceased is NOT sufficient provocation.
b. It must originate from the offended party
1. Why? Law says the provocation is on the part of the offended party
2. Example: Tomas mother insulted Petra. Petra kills Tomas because of the
insults. No Mitigating Circumstance because it was the mother who insulted
her, not Tomas.
3. Provocation by the deceased in the first stage of the fight is not
Mitigating
Circumstance when the accused killed him after he had fled because the
deceased from the moment he fled did not give any provocation for the
accused to pursue and attack him.
c. Provocation must be immediate to the act., i.e., to the commission of the crime
by the person who is provoked
1. Why? If there was an interval of time, the conduct of the offended party could
not have excited the accused to the commission of the crime, he having had
time to regain his reason and to exercise self-control.
2. Threat should not be offensive and positively strong because if it was, the
threat to inflict real injury is an unlawful aggression which may give rise to
self-defense and thus no longer a Mitigating Circumstance
5. That the act was committed in the immediate vindication of a grave offense to
the one committing the felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brother or sisters, or relatives by affinity within the
same degree.
1. Requisites:
theres a grave offense done to the one committing the felony etc.
that the felony is committed in vindication of such grave offense.
2. Lapse of time is allowed between the vindication and the one doing the
offense (proximate time, not just immediately after)
3. Example: Juan caught his wife and his friend in a compromising situation.
Juan kills his friend the next day still considered proximate.
PROVOCATION
Made directly only to the person
committing the felony
Cause that brought about the
provocation need not be a grave
offense
Necessary that provocation or threat
immediately preceded the act. No time
interval

VINDICATION
Grave offense may be also against the
offenders relatives mentioned by law
Offended party must have done a
grave offense to the offender or his
relatives
May be proximate. Time interval
allowed

More lenient in vindication because offense concerns the honor of the person. Such
is more worthy of consideration than mere spite against the one giving the
provocation or threat.
Vindication of a grave offense and passion and obfuscation cant be counted
separately and independently

6. That of having acted upon an impulse so powerful as naturally to have

produced passion or obfuscation

Passion and obfuscation is mitigating: when there are causes naturally producing in
a person powerful excitement, he loses his reason and self-control. Thereby
dismissing the exercise of his will power.
PASSION AND OBFUSCATION are Mitigating Circumstances only when the same
arise from lawful sentiments (not Mitigating Circumstance when done in the spirit of
revenge or lawlessness)
Requisites for Passion & Obfuscation
a. The offender acted on impulse powerful enough to produce passion or
obfuscation
b. That the act was committed not in the spirit of lawlessness or revenge
c. The act must come from lawful sentiments
Act which gave rise to passion and obfuscation
a. That there be an act, both unlawful and unjust
b. The act be sufficient to produce a condition of mind
c. That the act was proximate to the criminal act
d. The victim must be the one who caused the passion or obfuscation
Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed Tomas. Juan is
entitled to Mitigating Circumstance of P&O as his actuation arose from a natural
instinct that impels a father to rush to the rescue of his son.
The exercise of a right or a fulfillment of a duty is not the proper source of P&O.
Example: A policeman arrested Juan as he was making a public disturbance on the
streets. Juans anger and indignation resulting from the arrest cant be considered
passionate obfuscation because the policeman was doing a lawful act.
The act must be sufficient to produce a condition of mind. If the cause of the loss of
self-control was trivial and slight, the obfuscation is not mitigating.
Example: Juans boss punched him for not going to work he other day. Cause is
slight.
There could have been no Mitigating Circumstance of P&O when more than 24
hours elapsed between the alleged insult and the commission of the felony, or
several hours have passed between the cause of the P&O and the commission of
the crime, or at least hours intervened between the previous fight and subsequent
killing of deceased by accused.
Not mitigating if relationship is illegitimate
The passion or obfuscation will be considered even if it is based only on the honest
belief of the offender, even if facts turn out to prove that his beliefs were wrong.
Passion and obfuscation cannot co-exist with treachery since the means that the
offender has had time to ponder his course of action.

PASSION AND OBFUSCATION arising from one and the same cause should be
treated as only one mitigating circumstance
Vindication of grave offense cant co-exist w/ PASSION AND OBFUSCATION

PASSION AND OBFUSCATION

Mitigating
No physical force needed
From the offender himself
Must come from lawful sentiments

IRRESITIBLE FORCE
Exempting
Requires physical force
Must come from a 3rd person
Unlawful

PASSION AND OBFUSCATION

Produced by an impulse which may be
caused by provocation
Offense, which engenders perturbation
of mind, need not be immediate. It is
only required that the influence thereof
lasts until the crime is committed
Effect is loss of reason and self-control
on the part of the offender

PROVOCATION
Comes from injured party
Must
immediately
precede
commission of the crime

the

Same

7. That the offender had voluntarily surrendered himself to a person in authority

or his agents, or that he had voluntarily confessed his guilt before the court prior
to the presentation of the evidence for the prosecution.

2 Mitigating Circumstances present:

a) voluntarily surrendered
b) voluntarily confessed his guilt
If both are present, considered as 2 independent mitigating circumstances. Mitigate
penalty to a greater extent
Requisites of voluntary surrender:
a) offender not actually arrested
b) offender surrendered to a person in authority or the latters agent
c) surrender was voluntary
Surrender must be spontaneous shows his interest to surrender unconditionally to
the authorities
Spontaneous emphasizes the idea of inner impulse, acting without external
stimulus. The conduct of the accused, not his intention alone, after the commission
of the offense, determines the spontaneity of the surrender.
Example: Surrendered after 5 years, not spontaneous anymore.
Example: Surrendered after talking to town councilor. Not V.S. because theres an
external stimulus
Conduct must indicate a desire to own the responsibility
Not mitigating when warrant already served. Surrender may be considered
mitigating if warrant not served or returned unserved because accused cant be
located.

Surrender of person required. Not just of weapon.

Person in authority one directly vested with jurisdiction, whether as an individual or
as a member of some court/government/corporation/board/commission. Barrio
captain/chairman included.
Agent of person in authority person who by direct provision of law, or be election,
or by appointment by competent authority is charged with the maintenance of public
order and the protection and security of life and property and any person who comes
to the aid of persons in authority.
RPC does not make distinction among the various moments when surrender may
occur.
Surrender must be by reason of the commission of the crime for which defendant is
charged
Requisites for plea of guilty
a) offender spontaneously confessed his guilt
b) confession of guilt was made in open court (competent court)
c) confession of guilt was made prior to the presentation of evidence for the
prosecution
plea made after arraignment and after trial has begun does not entitle accused to
have plea considered as Mitigating Circumstance
plea in the RTC in a case appealed from the MTC is not mitigating - must make plea
at the first opportunity
plea during the preliminary investigation is no plea at all
even if during arraignment, accused pleaded not guilty, he is entitled to Mitigating
Circumstance as long as withdraws his plea of not guilty to the charge before the
fiscal could present his evidence
plea to a lesser charge is not Mitigating Circumstance because to be voluntary plea
of guilty, must be to the offense charged
plea to the offense charged in the amended info, lesser than that charged in the
original info, is Mitigating Circumstance
present Rules of Court require that even if accused pleaded guilty to a capital
offense, its mandatory for court to require the prosecution to prove the guilt of the
accused being likewise entitled to present evidence to prove, inter alia, Mitigating
Circumstance

8. That the offender is deaf and dumb, blind or otherwise suffering from some
physical defect w/c thus restricts his means of action, defense or communication
w/ his fellow beings.

Basis: one suffering from physical defect which restricts him does not have complete
freedom of action and therefore, there is diminution of that element of voluntariness.
No distinction between educated and uneducated deaf-mute or blind persons
The physical defect of the offender should restrict his means of action, defense or
communication with fellow beings, this has been extended to cover cripples,
armless people even stutterers.

The circumstance assumes that with their physical defect, the offenders do not have
a complete freedom of action therefore diminishing the element of voluntariness in
the commission of a crime.

9. Such illness of the offender as would diminish the exercise of the will-power of
the offender w/o depriving him of consciousness of his acts.

Basis: diminution of intelligence and intent

Requisites:
a) illness of the offender must diminish the exercise of his will-power
b) such illness should not deprive the offender of consciousness of his acts
when the offender completely lost the exercise of will-power, it may be an exempting
circumstance
deceased mind, not amounting to insanity, may give place to mitigation

10. And any other circumstance of a similar nature and analogous to those
above-mentioned

Examples of any other circumstance:

a) defendant who is 60 years old with failing eyesight is similar to a case of one
over 70 years old
b) outraged feeling of owner of animal taken for ransom is analogous to vindication
of grave offense
c) impulse of jealous feeling, similar to PASSION AND OBFUSCATION
d) voluntary restitution of property, similar to voluntary surrender
e) extreme poverty, similar to incomplete justification based on state of necessity
NOT analogous:
a) killing wrong person
b) not resisting arrest not the same as voluntary surrender
c) running amuck is not mitigating
MITIGATING CIRCUMSTANCE which arise from:
a) moral attributes of the offender
Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND
OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance
b) private relations with the offended party
Example: Juan stole his brothers watch. Juan sold it to Pedro, who knew it was
stolen. The circumstance of relation arose from private relation of Juan and the
brother. Does not mitigate Pedro.
c) other personal cause
Example: Minor, acting with discernment robbed Juan. Pedro, passing by, helped
the minor. Circumstance of minority, mitigates liability of minor only.
Shall serve to mitigate the liability of the principals, accomplices and accessories to
whom the circumstances are attendant.
Circumstances which are neither exempting nor mitigating
a) mistake in the blow
b) mistake in the identity of the victim

c) entrapment of the accused

d) accused is over 18 years old
e) performance of a righteous action
Example: Juan saved the lives of 99 people but caused the death of the last person,
he is still criminally liable